The legislative project known as the “Nordis Law” marks one of the most substantial normative interventions in the field of future real estate sales in recent years, with the declared object of increasing the protection of buyers and strengthening the security of the civil circuit in the real estate development sector.
The proposed changes concern not only the contractual relationship between the developer and the beneficiary, but also the technical mechanisms of cadastral records and real estate advertising, which reflects a systemic approach to the issue.
- Pre-apartment
According to the proposed amendments to art. 26 of Law no. 7/1996, the notion of “pre-apartment” is introduced, which is done on the basis of the authentic act of pre-apartment, prepared according to the cadastral documentation of pre-apartment, on the basis of which the land book of the future construction is opened and individual land books for all individual units of future assets provided for in the building permit. In the situation where, until the completion of the apartment operation, the number of individual units included in the initial building permit and the related documentation changes, it is necessary to conclude a new authentic pre-apartment act, prepared according to a new pre-apartment cadastral documentation.
Flattening is the operation of dividing a construction – condominium into several individual units.
Therefore, pre-flattening can be defined as the virtual division operation of a future construction – condominium in several individual units.
Currently, the promise of the sale of future goods can only be noted in the land register of the land, and according to art. 186 paragraph (3) of the Regulation on reception and registration in the cadastre and land register records, dated 8.2.2023 approved by Order no. 600/2023, the notation of pre-contracts having as their object the promise to transfer ownership of the individual unit of a condominium – future good – is taken only in the land book of the corresponding individual unit, according to the mentions in the apartment deed.
In the future, to the extent that the proposed amendments to art. 26 of Law no. 7/1996 will enter into force, promises of sale will be noted both in the land book of the land and in the virtual land book of the future asset. The legislative solution is a salutary one and contributes to the security of the civil circuit.
- The reservation contract
According to the proposed amendments to art. 22 of Law no. 10/1995 in the form adopted by the Senate, the reservation agreements with the object of individual units within the future condominium or future individual homes can be concluded for a maximum period of 60 days, in exchange for an amount that cannot exceed 5% of the price, under penalty of nullity. If the promise of sale or the contract of sale is not concluded by the expiration of the term, due to the exclusive fault of the developer, the amounts paid on the basis of the reservation shall be returned within 30 days at most.
According to the proposed amendments to art. 22 of Law no. 10/1995, in the form for promulgation, if the promise of sale or the contract of sale is not concluded by the expiration of the term, the amounts paid on the basis of the reservation shall be returned within no more than 30 days
Currently, the so-called reservation contracts can be interpreted, depending on the concrete wording, as either a pre-contractual promise (the parties undertake to enter into a promise to sell in the future), either directly a promise to sell (the parties undertake to conclude a sales contract in the future). This is because the promise of sale is validly concluded in the form under a private signature, as confirmed by the High Court of Cassation and Justice by decision no. 23/2017.
In the future, to the extent that the Nordis Law will enter into force in this form, through the reservation contract concluded under private signature, the parties will only be able to bind themselves to the future conclusion of a promise of sale, in authentic form, because according to the new law, the promise of sale can only be concluded in authentic form.
- The promise of sale
According to the proposed amendments to art. 22 of Law no. 10/1995, sales promises concerning individual units within the future condominium or future individual homes are concluded only in authentic form, after noting the building permit in the land register and after obtaining the authentication land certificate extract for the individual unit / future individual home and it is noted in the land register, at the latest on the next working day. If the buyer is assisted by a lawyer at the conclusion of the promise or contract of sale, the notary fee is reduced by 25%.
Currently, as confirmed by the High Court of Cassation and Justice by decision no. 23/2017, the promise of sale can be concluded either in authentic form or under private signature, on the basis of a land deed extract for information, the effects being the same.
In the future, to the extent that the Nordis Law will enter into force in this form, the promise of sale concerning individual units within the future condominium or future individual dwellings will only be validly concluded in authentic form, based on the land deed extract for authentication.
Unlike the land deed extract for information, according to art. 55 paragraph (3) of the Regulation on reception and registration in the cadastre and land register records, the land register extract for authentication is issued at the request of the notary public, in order to authenticate the legal documents by which a real real estate right is established, modified or transferred.
However, based on a promise to sell, no real real estate right is established, modified or transferred.
The legislator's motivation was probably that in the event that a land deed extract is requested for authentication, the cadastral number to which the extract refers becomes unavailable for a period of 10 working days, starting with the date, time and minute of submitting the application and ending with the end of the tenth working day. Within this period, no entries will be made in the land register, with the exception of the entry based on the legal act for the conclusion of which the extract from the land register was requested for authentication.
Most likely, it was desired to block the land register for the conclusion of a promise of sale, but it is also necessary to amend the secondary legislation, in order to expand the scope of application of the extract of the land register for authentication.
In any case, in the case of future assets other than individual units within the future condominium or future individual homes, the restrictive rules imposed by Lega Nordis will not apply.
And, in the absence of further legislative changes, in the case of individual units in existing condominiums or individual houses, the promise of sale can still be concluded both under private signature and in authentic form in the absence of a land deed extract for authentication.
- advance
According to the proposed amendments to art. 22 of Law no. 10/1995 in the form adopted by the Senate, the amounts paid by the buyer as an advance, based on the promise, I can't get over it 15% at the end of the promise, 25% at the completion of the resistance structure, 25% at the completion of the installation worksaccording to the minutes of partial receipt and are deposited in a bank account opened in the name of the developer in any currency and can be spent only for the purpose of real estate development.
According to the proposed amendments to art. 22 of Law no. 10/1995, in the form for promulgation, however, the amounts paid as an advance are deposited in a separate bank account of the developer dedicated to the building of the project for which the advance was paid, for the resistance part a maximum of 25% of the price and after its completion, for the installations part a maximum of 20% of the price.
Therefore, although it departed from the idea of limiting the advance that can be paid under a promise to sell, having as its object individual units within the future condominium or future individual dwellings, in its current form, only the way in which the advance can be spent is limited (ie for the resistance part a maximum of 25% of the price and after its completion, for the installation part a maximum of 20% of the price).
- Cadastral operations
According to the law in the form adopted by the Senate, the notation in the land register of the promise with the object of a future good will not affect the right of the developer to carry out any administrative steps, legal or cadastral operations regarding the completion of the project, without the prior consent of the promisor-buyer being necessary, except in the case where the total area or the location of the unit that is the subject of the promise changes.
But, according to art. 879 para. (3) Civil Code, attaching or detaching a property encumbered with encumbrances can only be done with the consent of the owners of those encumbrances. The refusal of the task holders must not be abusive, it can be censured by the court.
Therefore, legal or cadastral operations, to which the Nordis Law refers, do not include sticking or unsticking, but possibly flatting, etc.
- ConCluSIonS
The changes proposed by the Nordis Law configure a new legal framework for future real estate transactions, characterized by an increased focus on prevention, transparency and real estate advertising. The introduction of pre-apartment, the consecration of the binding nature of the authentic form for the promise of sale, the express regulation of the reservation contract and the functional limitation of the use of the advance are measures that tend to significantly reduce the risks assumed by the prospective buyers.
However, certain legislative solutions raise legitimate questions regarding normative consistency and correlation with secondary legislation, in particular regarding the use of the land book extract for authentication in the case of promises to sell and the legal effects of making the land book unavailable. Also, the regime differentiation between future and existing assets, as well as the limitation of the developer's cadastral interventions, requires a careful interpretation to avoid administrative blockages or legal conflicts.
Overall, the Nordis Law represents an important step towards professionalizing and disciplining the real estate market, but its real effectiveness will depend on the clarity of the final rules, harmonization with related legislation and how courts and practitioners will manage to integrate the new legal institutions into a unitary and coherent framework of application.
An article signed by Marius Chelaru, Managing Associate (butcher@stoica-asociatii.ro), STOICA & ASSOCIATES
Article supported by STOICA & ASSOCIAțII
